Application by The Australian Retailers Association

[2024] FWCFB 251

[2024] FWCFB 251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 160—Variation of modern award to remove ambiguity or uncertainty or correct error

Application by The Australian Retailers Association

(AM2024/9)

GENERAL RETAIL INDUSTRY AWARD 2020

[MA000004]

JUSTICE HATCHER, PRESIDENT

DEPUTY PRESIDENT CLANCY

COMMISSIONER MATHESON

SYDNEY, 7 MAY 2024

Application to vary the General Retail Industry Award 2020 – proposed variation C – clause 16.6(b) – clause ambiguous and uncertain – award varied – rate of 200 per cent to apply to employee’s minimum hourly rate.

Introduction

1. The Australian Retailers Association (ARA) has made an application under ss 158(1) and 160(2)(c) of the Fair Work Act 2009 (Cth) (FW Act) to vary several provisions of the General Retail Industry Award 2020[1] (Retail Award). The ARA has set out 17 proposed variations marked A through Q in its application. Variation E has already been determined by a Full Bench of this Commission together with matter AM2023/17.[2]

1. The ARA’s proposed variation C concerns clause 16.6 of the Retail Award, which currently provides:

16.6 Breaks between work periods

(a)An employee must have a minimum break of 12 hours between when the employee finishes work on one day and starts work on the next.

(b)If an employee starts work again without having had 12 hours off work, the employer must pay the employee at the rate of 200% of the rate they would be entitled to until the employee has a break of 12 consecutive hours.

(c)The employee must not suffer any loss of pay for ordinary hours not worked during the period of a break required by clause 16.6.

(d)The employer and an individual employee or a group of employees may agree that clause 16.6 is to have effect as if it provided for a minimum break of 10 hours.

1. Proposed variation C would alter clause 16.6 in two respects:

(a)Clause 16.6(b) would be varied to clarify that the prescribed penalty rate is 200 per cent of the minimum hourly rate by providing as follows:

If an employee starts work again without having had 12 hours off work, the employer must pay the employee for each hour worked at the rate of 200% of the employee’s minimum hourly rate otherwise applicable under clause 17 – Minimum rates until the employee has a break of 12 consecutive hours.

(b)The references to 12 hours in paragraphs (a) and (b) of clause 16.6 would be replaced with references to 10 hours, and paragraph (d) would be deleted.

1. This decision concerns only the first aspect of proposed variation C. The second aspect will be dealt with at a later time together with other proposed variations in the ARA’s application which remain contested. The variation we are dealing with here is supported by the National Retail Association (NRA) and the Australian Industry Group (AiG) and opposed by the Shop, Distributive and Allied Employees’ Association (SDA), the Australian Workers’ Union (AWU) and Retail and Fast Food Workers Union Incorporated (RFFWU Inc).

1. The ARA seeks…